For example, if a man were to marry a nonscriptural
woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate.”
Tahrir Mahmood in his book Muslim Law in India and
Abroad, (2nd edition) at page 151 also affirms that the child of a
couple whose marriage is fasid, i.e., unlawful but not void, under
Muslim law will be legitimate. Only a child born outside of
wedlock or born of a batil marriage is not legitimate.
A.A.A. Fyzee, at page 76 of his book Outlines of
Muhammadan Law (5th edition) reiterates by citing Mulla that the
nikah of a Muslim man with an idolater or fireworshipper
is only
irregular and not void. He also refers to Ameer Ali’s proposition
that such a marriage would not affect the legitimacy of the
offspring, as the polytheistic woman may at any time adopt
Islam, which would at once remove the bar and validate the
marriage.
12. The position that a marriage between a Hindu woman and
Muslim man is merely irregular and the issue from such wedlock
is legitimate has also been affirmed by various High Courts. (See
Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad),
Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19).
13. Thus, based on the above consistent view, we conclude that
the marriage of a Muslim man with an idolater or fireworshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s
property. It would not be out of place to emphasise at this
juncture that since Hindus are idol worshippers, which includes
worship of physical images/statues through offering of flowers,
adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but
merely an irregular (fasid) marriage.
14. In this view of the matter, the trial Court and the High
Court were justified in concluding that the plaintiff is the
legitimate son of Mohammed Ilias and Valliamma, and is entitled
to his share in the property as per law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5158 OF 2013
MOHAMMED SALIM Vs SHAMSUDEEN
MOHAN M. SHANTANAGOUDAR, J.
Dated:January 22, 2019.
The judgment dated 05.09.2007 passed in S.A. No. 693 of
1994 by the High Court of Kerala at Ernakulam is the subject
matter of this appeal. By the impugned judgment, the High Court
set aside the judgment of the District Court,
Thiruvananthapuram dated 12.07.1994 passed in AS No.
264/1989 and restored the judgment and decree passed in O.S.
No. 144/1984 by the Additional Sub Court, Thiruvananthapuram
dated 17.07.1989.
2. The facts leading to this appeal are that a suit for partition
and possession of 14/16th share in the Plaint Schedule ‘A’
property and half the rights over Plaint Schedule ‘B’ property was
filed by the Respondent No. 1 herein (original plaintiff).
Defendant No. 1 in the suit, Mohammed Idris, is the brother of
Mohammed Ilias, the father of the plaintiff, and Defendant Nos.
2 to 7 are the children of Mohammed Idris. Both the plaintiff’s
father and Defendant No. 1 are the sons of Zainam Beevi, who
expired in 1955. Both Plaint properties belonged to her. Plaint
Schedule ‘A’ property was gifted to Mohammed Ilias, based on a
gift deed executed by Zainam Beevi.
The case of the plaintiff is that Defendant No. 8 namely
Saidat, was the first wife of Mohammed Ilias, and no issue was
born out of the said wedlock. Thereafter, Mohammed Ilias
married Valliamma in 1120 M.E. (as per the Malayalam
Calendar, which corresponds to 1945 AD in the Gregorian
system). Valliamma was a Hindu at the time of her marriage with
Mohammed Ilias. Both Mohammed Ilias and Valliamma lived
together as husband and wife at Thiruvananthapuram. Later,
Valliamma was renamed Souda Beebi. Out of the said wedlock,
Shamsudeen (the plaintiff) was born. Subsequent to the death of
2
Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi) married
Aliyarkunju.
The plaintiff claimed that he was the only son of Mohammed
Ilias and on his death, he became entitled to 14/16th of the share
in Schedule ‘A’ property. He also claimed half the share in
Schedule ‘B’ property through inheritance after the demise of
Zainam Beevi, as the same would have devolved upon the
plaintiff, being the son of the predeceased son of Zainam Beevi,
and Mohammed Idris, Defendant No. 1, being the only surviving
son of Zainam Beevi. Hence, the suit was filed.
3. It is the case of the defendants that Valliamma was not the
legally wedded wife of Mohammed Ilias and that she was a Hindu
by religion at the time of marriage. She had not converted to
Islam at the time of her marriage, and thus the plaintiff being the
son of Valliamma, is not entitled to any share in the property of
Mohammed Ilias. It is their further case that Mohammed Ilias
had died two years prior to the birth of the plaintiff.
4. As mentioned supra, the trial Court decreed the suit and
the first appellate Court allowed the appeal and dismissed the
suit by setting aside the judgment and decree of the trial Court.
However, the High Court by the impugned judgment set aside the
judgment passed by the first appellate Court and confirmed the
judgment and decree passed by the trial Court. Hence, the
instant appeal was filed by the original defendants and the legal
representatives of those among them who have since died.
5. Mr. Guru Krishnakumar, learned Senior Counsel, taking us
through the material on record, submitted that the Trial Court
and the High Court were not justified in decreeing the suit,
inasmuch as the plaintiff himself had admitted that he was born
in the year 1949, whereas his alleged father Mohammed Ilias
expired in the year 1947. Therefore, the plaintiff could not be
treated as the son of Mohammed Ilias. He further submitted that
since Valliamma was a Hindu by religion, she would not have any
right over the property of Mohammed Ilias, and consequently the
plaintiff would not get any share in the property of Mohammed
Ilias.
6. It is not in dispute that Zainam Beevi gifted Plaint
Schedule ‘A’ property to her son Mohammed Ilias. In view of the
gift deed in favour of Mohammed Ilias, upon his death, Schedule
‘A’ property would have devolved upon his legal heirs as an
absolute property as provided under Muslim law. Plaint
Schedule ‘B’ property admittedly belonged to Zainam Beevi and
4
upon her death, it devolved on her legal heirs. Since Zainam
Beevi had two sons, both the sons/their respective legal heirs
would have inherited half a share each after the death of Zainam
Beevi.
7. It is also not in dispute that Defendant No. 8, Saidat is the
widow (first wife) of Mohammed Ilias. She has clearly admitted in
her written statement that Mohammed Ilias married Valliamma,
Defendant No. 9, and out of the said wedlock, the plaintiff was
born. Exhibit A3 is the birth register extract of the plaintiff
maintained by the statutory authorities, which indicates that the
plaintiff is the son of Mohammed Ilias and Valliamma. It is a
public document. An entry in any public or other official book,
register or record, stating a fact in issue or relevant fact, and
made by a public servant in the discharge of his official duty, or
by any other person in performance of a duty specially enjoined
by the law in accordance with which such book, register or
record is kept, is itself a relevant fact, as per section 35 of the
Indian Evidence Act, 1872. Exhibit A3 being a public document
is relevant to resolve the dispute at hand. Additionally, a specific
pleading was found in the plaint that Mohammed Ilias and
Valliamma were living together as husband and wife in House No.
5
T.C.13 of Poojappura Ward in Thiruvananthapuram, which has
not been denied in the written statement of the defendants.
As per Exhibit A3 mentioned above, the plaintiff was born
on 01.07.1124 M.E. (12.02.1949 as per the Gregorian Calendar)
and the same has not been seriously disputed. Admittedly,
Mohammed Ilias died on 10.09.1124 M.E. The said date
corresponds to 22.04.1949 in the Gregorian Calendar, as seen
from the Government Almanac, which cannot be disputed
inasmuch as it is a public record maintained by the Trivandrum
Public Library (Government of Kerala). Thus, it can be concluded
that the plaintiff was born two months prior to the death of
Mohammed Ilias.
Under these circumstances, in our considered opinion, the
Trial Court and the High Court were justified in concluding,
based on the preponderance of probabilities, that Valliamma was
the legally wedded wife of Mohammed Ilias, and the plaintiff was
the child born out of the said wedlock.
8. The High Court, in our considered opinion, was also
justified in concluding that though the plaintiff was born out of a
fasid (irregular) marriage, he cannot be termed as an illegitimate
son of Mohammed Ilias. On the contrary, he is the legitimate son
6
of Mohammed Ilias, and consequently is entitled to inherit the
shares claimed in the estate of his father. The High Court relied
upon various texts, including Mulla’s Principles of Mahommedan
Law (for brevity “Mulla”) and Syed Ameer Ali’s Principles of
Mahommedan Law, to conclude that Muslim law does not treat
the marriage of a Muslim with a Hindu woman as void, and
confers legitimacy upon children born out of such wedlock.
In the 21st edition of Mulla, at page 338, § 250, marriage is
defined as follows:“
Marriage (nikah) is defined to be a contract
which has for its object the procreation and the
legalizing of children.”
Thus it appears that a marriage according to Muslim law is not a
sacrament but a civil contract. Essentials of a marriage are dealt
with in § 252 at page 340 of Mulla (21st edition) as follows:
“It is essential to the validity of a marriage that
there should be a proposal made by or on behalf
of one of the parties to the marriage, and an
acceptance of the proposal by or on behalf of the
other, in the presence and hearing of two male or
one male and two female witnesses, who must be
sane and adult Mohamedans. The proposal and
acceptance must both be expressed at one
meeting; a proposal made at one meeting and an
acceptance made at another meeting do not
constitute a valid marriage. Neither writing nor
any religious ceremony is essential.”
7
§ 259(1) at page 345 of the 21st edition deals with difference
of religion, providing that marriage of a Muslim man with a nonMuslim
woman who is an idolatress or fire worshipper is not
void, but merely irregular. It reads:
“A Mahomedan male may contract a valid
marriage not only with a Mahomedan woman,
but also with a Kitabia, that is, a Jewess or a
Christian, but not with an idolatress or a fireworshipper.
A marriage however, with an
idolatress or a fireworshipper,
is not void, but
merely irregular.”
Before proceeding further, it is crucial to note that under
Muslim law, there are three types of marriage—valid, irregular
and void, which are dealt with in § 253 at page 342 of Mulla (21st
edition):
“A marriage may be valid (sahih), or irregular
(fasid) or void from the beginning (batil).”
The High Court, while dealing with the contention that the
correct translation of the Arabic word “fasid” was “invalid”, and
not “irregular”, and that therefore a fasid marriage was a void
marriage, considered the changes over time in the interpretation
of “fasid”. It would be worthwhile for us to refer to these changes
as well. In the 6th edition of Mulla, at §§ 197, 199 and 200, fasid
8
marriage is interpreted as “invalid”. So also in §§ 197, 199 and
204A of the 8th edition of Mulla, fasid is stated to mean “invalid”.
For instance, in the 6th edition of Mulla, § 200 at page 162,
dealing with the difference of religion, reads:
“(1) A Mahomedan male may contract a valid
marriage not only with a Mahomedan woman but
with a Kitabia, that is, a Jewess of a Christian,
but not with an idolatress or a fireworshipper.
If
he does marry an idolatress or a fireworshipper
the marriage is not void (batil), but merely
invalid (fasid).”
(emphasis supplied)
§ 204A at page 164 of the same edition deals with the
distinction between void (batil) and invalid (fasid) marriage. It
provides that a marriage which is not valid may be either void
(batil) or invalid (fasid). A void marriage is one which is unlawful
in itself, the prohibition against such a marriage being perpetual
and absolute. An invalid marriage (fasid marriage) is described as
one which is not unlawful in itself, but unlawful “for something
else”, as here the prohibition is temporary or relative, or when the
invalidity arises from an accidental circumstance such as the
absence of a witness. § 204A(3) at page 165 of the 6th edition of
Mulla reads:
9
“…Thus the following marriages are invalid,
namely—
(a) a marriage contracted without witnesses, (ss.
196197);
(b) a marriage by a person having four wives with
a fifth wife (s. 198);
(c) a marriage with a woman who is the wife of
another, (s. 198A);
(d) a marriage with a woman undergoing iddat
(s.199);
(e) a marriage prohibited by reason of
difference of religion (s. 200);
(f) a marriage with a woman so related to the wife
that if one of them had been a male, they could
not have lawfully intermarried (s. 204)…”
(emphasis supplied)
The reason why the aforesaid marriages are invalid and not
void has also been provided later in the same paragraph. With
respect to marriages prohibited by reason of difference of religion,
it is stated thus:
“…in cl. (e) the objection may be removed by the
wife becoming a convert to the Mussulman,
Christian or Jewish religion, or the husband
adopting the Moslem faith…”
In the 10th edition, a change has been made to the meaning
of fasid marriage. In § 196A, valid, irregular and void marriages
are dealt with. It reads:
“A marriage may be valid (sahih) or irregular
(fasid), or void from the beginning (batil).”
(emphasis supplied)
10
From the 10th edition onwards, fasid marriage has been
described as an irregular marriage, instead of invalid, but there
has been no change with regard to the effect of a fasid marriage
from the 6th edition onwards. The effects of an invalid (fasid)
marriage have been dealt with in the 6th edition of Mulla at § 206
at page 166, clauses (1) and (2) of which read:
“(1) An invalid marriage has no legal effect before
consummation.
(2) If consummation has taken place, the wife is
entitled to dower [“proper” (s. 220) or specified (s.
218), whichever is less], and children conceived
and born during the subsistence of the marriage
are legitimate as in the case of a valid marriage.
But an invalid marriage does not, even after
consummation, create mutual rights of
inheritance between the parties.”
In the 8th edition of Mulla, the effects of a fasid marriage
have been dealt with in § 206 at page 173. As in the 6th edition, it
is stated that children conceived and born during the subsistence
of a fasid marriage are legitimate, as in the case of a valid
marriage. As noted supra, the same position has been followed in
the subsequent editions also, except that fasid has been
described as “irregular” from the 10th edition onwards rather than
as “invalid”.
11
Irrespective of the word used, the legal effect of a fasid
marriage is that in case of consummation, though the wife is
entitled to get dower, she is not entitled to inherit the properties
of the husband. But the child born in that marriage is legitimate
just like in the case of a valid marriage, and is entitled to inherit
the property of the father.
9. Evidently, Muslim law clearly distinguishes between a valid
marriage (sahih), void marriage (batil), and invalid/irregular
marriage (fasid). Thus, it cannot be stated that a batil (void)
marriage and a fasid (invalid/irregular) marriage are one and the
same. The effect of a batil (void) marriage is that it is void ab
initio and does not create any civil right or obligations between
the parties. So also, the offspring of a void marriage are
illegitimate (§ 205A of the 6th and 8th editions and §§ 205A of the
10th edition, and 266 of the 18th edition of Mulla). Therefore, the
High Court correctly concluded that the marriage of Defendant
No. 9 with Mohammed Ilias cannot be held to be a batil marriage
but only a fasid marriage.
12
10. We find that the same position has been reiterated in the 21st
edition of Mulla as follows. The distinction between void and
irregular marriages has been dealt with in § 264 at page 349:
“(1) A marriage which is not valid may be either
void or irregular.
(2) A void marriage is one which is unlawful in
itself, the prohibition against the marriage being
perpetual and absolute. Thus, a marriage with a
woman prohibited by reason of consanguinity
(§260), affinity (§261), or fosterage (§262), is void,
the prohibition against marriage with such a
woman being perpetual and absolute.
(3) An irregular marriage is one which is not
unlawful in itself, but unlawful ‘for something else,’
as where the prohibition is temporary or relative, or
when the irregularity arises from an accidental
circumstance, such as the absence of witnesses.
Thus the following marriages are irregular, namely
—
(a) a marriage contracted without witnesses (§
254);
(b) a marriage with a fifth wife by a person having
four wives (§ 255);
(c) a marriage with a woman undergoing iddat (§
257);
(d) a marriage prohibited by reason of
difference of religion (§ 259);
(e) a marriage with a woman so related to the
wife that if one of them had been a male, they could
not have lawfully intermarried (§ 263).
13
The reason why the aforesaid marriages are
irregular, and not void, is that in Clause (a) the
irregularity arises from an accidental circumstance;
in Clause (b) the objection may be removed by the
man divorcing one of his four wives; in Clause (c)
the impediment ceases on the expiration of the
period of iddat; in Clause (d) the objection may be
removed by the wife becoming a convert to the
Mussalman, Christian or Jewish religion, or the
husband adopting the Moslem faith; and in
Clause (e) the objection may be removed by the man
divorcing the wife who constitutes the obstacle;
thus if a man who has already married one sister
marries another, he may divorce the first, and make
the second lawful to himself.”
(emphasis supplied)
The effect of an irregular (fasid) marriage has been dealt
with in § 267 at pages 350351
of the 21st edition of Mulla as
follows:
“267. Effect of an irregular (fasid) marriage.—(1)
An irregular marriage may be terminated by either
party, either before or after consummation, by
words showing an intention to separate, as where
either party says to the other “I have relinquished
you”. An irregular marriage has no legal effect
before consummation.
(2) If consummation has taken place—
(i) the wife is entitled to dower, proper or
specified, whichever is less (§ 286, 289);
14
(ii) she is bound to observe the iddat, but the
duration of the iddat both on divorce and death is
three course (see § 257(2));
(iii) the issue of the marriage is legitimate.
But an irregular marriage, though consummated,
does not create mutual rights of inheritance
between husband and wife...”
(emphasis supplied)
The Supreme Court, in Chand Patel v. Bismillah Begum,
(2008) 4 SCC 774, while considering the question of the validity
of a marriage of a Muslim man with the sister of his existing wife,
referred to the above passages from Mulla (from an earlier edition,
as reproduced in the 21st edition) while discussing the difference
between void and irregular marriages and the effects of an
irregular marriage.
11. In Syed Ameer Ali’s Mohamedan Law also, the same
principle has been enunciated. The learned author, while dealing
with the issue of the legitimacy of the children, observed at page
203 of Vol. II, 5th edition:
“The subject of invalid marriages, unions that are
merely invalid (fasid) but not void (batil) ab initio
under the Sunni Law, will be dealt with later in
detail, but it may be stated here that the issue of
invalid marriage are without question legitimate
according to all the sects.
For example, if a man were to marry a nonscriptural
woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate.”
Tahrir Mahmood in his book Muslim Law in India and
Abroad, (2nd edition) at page 151 also affirms that the child of a
couple whose marriage is fasid, i.e., unlawful but not void, under
Muslim law will be legitimate. Only a child born outside of
wedlock or born of a batil marriage is not legitimate.
A.A.A. Fyzee, at page 76 of his book Outlines of
Muhammadan Law (5th edition) reiterates by citing Mulla that the
nikah of a Muslim man with an idolater or fireworshipper
is only
irregular and not void. He also refers to Ameer Ali’s proposition
that such a marriage would not affect the legitimacy of the
offspring, as the polytheistic woman may at any time adopt
Islam, which would at once remove the bar and validate the
marriage.
12. The position that a marriage between a Hindu woman and
Muslim man is merely irregular and the issue from such wedlock
is legitimate has also been affirmed by various High Courts. (See
Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad),
Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19).
13. Thus, based on the above consistent view, we conclude that
the marriage of a Muslim man with an idolater or fireworshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s
property. It would not be out of place to emphasise at this
juncture that since Hindus are idol worshippers, which includes
worship of physical images/statues through offering of flowers,
adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but
merely an irregular (fasid) marriage.
14. In this view of the matter, the trial Court and the High
Court were justified in concluding that the plaintiff is the
legitimate son of Mohammed Ilias and Valliamma, and is entitled
to his share in the property as per law. The High Court was also
justified in modifying the decree passed by the trial Court and
awarding the appropriate share in favour of the plaintiff. No
issue has been raised before us relating to the quantum of share.
Accordingly, the appeal fails and stands dismissed.
………………………………..J.
[ N.V. Ramana]
………………………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
January 22, 2019.
woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate.”
Tahrir Mahmood in his book Muslim Law in India and
Abroad, (2nd edition) at page 151 also affirms that the child of a
couple whose marriage is fasid, i.e., unlawful but not void, under
Muslim law will be legitimate. Only a child born outside of
wedlock or born of a batil marriage is not legitimate.
A.A.A. Fyzee, at page 76 of his book Outlines of
Muhammadan Law (5th edition) reiterates by citing Mulla that the
nikah of a Muslim man with an idolater or fireworshipper
is only
irregular and not void. He also refers to Ameer Ali’s proposition
that such a marriage would not affect the legitimacy of the
offspring, as the polytheistic woman may at any time adopt
Islam, which would at once remove the bar and validate the
marriage.
12. The position that a marriage between a Hindu woman and
Muslim man is merely irregular and the issue from such wedlock
is legitimate has also been affirmed by various High Courts. (See
Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad),
Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19).
13. Thus, based on the above consistent view, we conclude that
the marriage of a Muslim man with an idolater or fireworshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s
property. It would not be out of place to emphasise at this
juncture that since Hindus are idol worshippers, which includes
worship of physical images/statues through offering of flowers,
adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but
merely an irregular (fasid) marriage.
14. In this view of the matter, the trial Court and the High
Court were justified in concluding that the plaintiff is the
legitimate son of Mohammed Ilias and Valliamma, and is entitled
to his share in the property as per law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5158 OF 2013
MOHAMMED SALIM Vs SHAMSUDEEN
MOHAN M. SHANTANAGOUDAR, J.
Dated:January 22, 2019.
The judgment dated 05.09.2007 passed in S.A. No. 693 of
1994 by the High Court of Kerala at Ernakulam is the subject
matter of this appeal. By the impugned judgment, the High Court
set aside the judgment of the District Court,
Thiruvananthapuram dated 12.07.1994 passed in AS No.
264/1989 and restored the judgment and decree passed in O.S.
No. 144/1984 by the Additional Sub Court, Thiruvananthapuram
dated 17.07.1989.
2. The facts leading to this appeal are that a suit for partition
and possession of 14/16th share in the Plaint Schedule ‘A’
property and half the rights over Plaint Schedule ‘B’ property was
filed by the Respondent No. 1 herein (original plaintiff).
Defendant No. 1 in the suit, Mohammed Idris, is the brother of
Mohammed Ilias, the father of the plaintiff, and Defendant Nos.
2 to 7 are the children of Mohammed Idris. Both the plaintiff’s
father and Defendant No. 1 are the sons of Zainam Beevi, who
expired in 1955. Both Plaint properties belonged to her. Plaint
Schedule ‘A’ property was gifted to Mohammed Ilias, based on a
gift deed executed by Zainam Beevi.
The case of the plaintiff is that Defendant No. 8 namely
Saidat, was the first wife of Mohammed Ilias, and no issue was
born out of the said wedlock. Thereafter, Mohammed Ilias
married Valliamma in 1120 M.E. (as per the Malayalam
Calendar, which corresponds to 1945 AD in the Gregorian
system). Valliamma was a Hindu at the time of her marriage with
Mohammed Ilias. Both Mohammed Ilias and Valliamma lived
together as husband and wife at Thiruvananthapuram. Later,
Valliamma was renamed Souda Beebi. Out of the said wedlock,
Shamsudeen (the plaintiff) was born. Subsequent to the death of
2
Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi) married
Aliyarkunju.
The plaintiff claimed that he was the only son of Mohammed
Ilias and on his death, he became entitled to 14/16th of the share
in Schedule ‘A’ property. He also claimed half the share in
Schedule ‘B’ property through inheritance after the demise of
Zainam Beevi, as the same would have devolved upon the
plaintiff, being the son of the predeceased son of Zainam Beevi,
and Mohammed Idris, Defendant No. 1, being the only surviving
son of Zainam Beevi. Hence, the suit was filed.
3. It is the case of the defendants that Valliamma was not the
legally wedded wife of Mohammed Ilias and that she was a Hindu
by religion at the time of marriage. She had not converted to
Islam at the time of her marriage, and thus the plaintiff being the
son of Valliamma, is not entitled to any share in the property of
Mohammed Ilias. It is their further case that Mohammed Ilias
had died two years prior to the birth of the plaintiff.
4. As mentioned supra, the trial Court decreed the suit and
the first appellate Court allowed the appeal and dismissed the
suit by setting aside the judgment and decree of the trial Court.
However, the High Court by the impugned judgment set aside the
judgment passed by the first appellate Court and confirmed the
judgment and decree passed by the trial Court. Hence, the
instant appeal was filed by the original defendants and the legal
representatives of those among them who have since died.
5. Mr. Guru Krishnakumar, learned Senior Counsel, taking us
through the material on record, submitted that the Trial Court
and the High Court were not justified in decreeing the suit,
inasmuch as the plaintiff himself had admitted that he was born
in the year 1949, whereas his alleged father Mohammed Ilias
expired in the year 1947. Therefore, the plaintiff could not be
treated as the son of Mohammed Ilias. He further submitted that
since Valliamma was a Hindu by religion, she would not have any
right over the property of Mohammed Ilias, and consequently the
plaintiff would not get any share in the property of Mohammed
Ilias.
6. It is not in dispute that Zainam Beevi gifted Plaint
Schedule ‘A’ property to her son Mohammed Ilias. In view of the
gift deed in favour of Mohammed Ilias, upon his death, Schedule
‘A’ property would have devolved upon his legal heirs as an
absolute property as provided under Muslim law. Plaint
Schedule ‘B’ property admittedly belonged to Zainam Beevi and
4
upon her death, it devolved on her legal heirs. Since Zainam
Beevi had two sons, both the sons/their respective legal heirs
would have inherited half a share each after the death of Zainam
Beevi.
7. It is also not in dispute that Defendant No. 8, Saidat is the
widow (first wife) of Mohammed Ilias. She has clearly admitted in
her written statement that Mohammed Ilias married Valliamma,
Defendant No. 9, and out of the said wedlock, the plaintiff was
born. Exhibit A3 is the birth register extract of the plaintiff
maintained by the statutory authorities, which indicates that the
plaintiff is the son of Mohammed Ilias and Valliamma. It is a
public document. An entry in any public or other official book,
register or record, stating a fact in issue or relevant fact, and
made by a public servant in the discharge of his official duty, or
by any other person in performance of a duty specially enjoined
by the law in accordance with which such book, register or
record is kept, is itself a relevant fact, as per section 35 of the
Indian Evidence Act, 1872. Exhibit A3 being a public document
is relevant to resolve the dispute at hand. Additionally, a specific
pleading was found in the plaint that Mohammed Ilias and
Valliamma were living together as husband and wife in House No.
5
T.C.13 of Poojappura Ward in Thiruvananthapuram, which has
not been denied in the written statement of the defendants.
As per Exhibit A3 mentioned above, the plaintiff was born
on 01.07.1124 M.E. (12.02.1949 as per the Gregorian Calendar)
and the same has not been seriously disputed. Admittedly,
Mohammed Ilias died on 10.09.1124 M.E. The said date
corresponds to 22.04.1949 in the Gregorian Calendar, as seen
from the Government Almanac, which cannot be disputed
inasmuch as it is a public record maintained by the Trivandrum
Public Library (Government of Kerala). Thus, it can be concluded
that the plaintiff was born two months prior to the death of
Mohammed Ilias.
Under these circumstances, in our considered opinion, the
Trial Court and the High Court were justified in concluding,
based on the preponderance of probabilities, that Valliamma was
the legally wedded wife of Mohammed Ilias, and the plaintiff was
the child born out of the said wedlock.
8. The High Court, in our considered opinion, was also
justified in concluding that though the plaintiff was born out of a
fasid (irregular) marriage, he cannot be termed as an illegitimate
son of Mohammed Ilias. On the contrary, he is the legitimate son
6
of Mohammed Ilias, and consequently is entitled to inherit the
shares claimed in the estate of his father. The High Court relied
upon various texts, including Mulla’s Principles of Mahommedan
Law (for brevity “Mulla”) and Syed Ameer Ali’s Principles of
Mahommedan Law, to conclude that Muslim law does not treat
the marriage of a Muslim with a Hindu woman as void, and
confers legitimacy upon children born out of such wedlock.
In the 21st edition of Mulla, at page 338, § 250, marriage is
defined as follows:“
Marriage (nikah) is defined to be a contract
which has for its object the procreation and the
legalizing of children.”
Thus it appears that a marriage according to Muslim law is not a
sacrament but a civil contract. Essentials of a marriage are dealt
with in § 252 at page 340 of Mulla (21st edition) as follows:
“It is essential to the validity of a marriage that
there should be a proposal made by or on behalf
of one of the parties to the marriage, and an
acceptance of the proposal by or on behalf of the
other, in the presence and hearing of two male or
one male and two female witnesses, who must be
sane and adult Mohamedans. The proposal and
acceptance must both be expressed at one
meeting; a proposal made at one meeting and an
acceptance made at another meeting do not
constitute a valid marriage. Neither writing nor
any religious ceremony is essential.”
7
§ 259(1) at page 345 of the 21st edition deals with difference
of religion, providing that marriage of a Muslim man with a nonMuslim
woman who is an idolatress or fire worshipper is not
void, but merely irregular. It reads:
“A Mahomedan male may contract a valid
marriage not only with a Mahomedan woman,
but also with a Kitabia, that is, a Jewess or a
Christian, but not with an idolatress or a fireworshipper.
A marriage however, with an
idolatress or a fireworshipper,
is not void, but
merely irregular.”
Before proceeding further, it is crucial to note that under
Muslim law, there are three types of marriage—valid, irregular
and void, which are dealt with in § 253 at page 342 of Mulla (21st
edition):
“A marriage may be valid (sahih), or irregular
(fasid) or void from the beginning (batil).”
The High Court, while dealing with the contention that the
correct translation of the Arabic word “fasid” was “invalid”, and
not “irregular”, and that therefore a fasid marriage was a void
marriage, considered the changes over time in the interpretation
of “fasid”. It would be worthwhile for us to refer to these changes
as well. In the 6th edition of Mulla, at §§ 197, 199 and 200, fasid
8
marriage is interpreted as “invalid”. So also in §§ 197, 199 and
204A of the 8th edition of Mulla, fasid is stated to mean “invalid”.
For instance, in the 6th edition of Mulla, § 200 at page 162,
dealing with the difference of religion, reads:
“(1) A Mahomedan male may contract a valid
marriage not only with a Mahomedan woman but
with a Kitabia, that is, a Jewess of a Christian,
but not with an idolatress or a fireworshipper.
If
he does marry an idolatress or a fireworshipper
the marriage is not void (batil), but merely
invalid (fasid).”
(emphasis supplied)
§ 204A at page 164 of the same edition deals with the
distinction between void (batil) and invalid (fasid) marriage. It
provides that a marriage which is not valid may be either void
(batil) or invalid (fasid). A void marriage is one which is unlawful
in itself, the prohibition against such a marriage being perpetual
and absolute. An invalid marriage (fasid marriage) is described as
one which is not unlawful in itself, but unlawful “for something
else”, as here the prohibition is temporary or relative, or when the
invalidity arises from an accidental circumstance such as the
absence of a witness. § 204A(3) at page 165 of the 6th edition of
Mulla reads:
9
“…Thus the following marriages are invalid,
namely—
(a) a marriage contracted without witnesses, (ss.
196197);
(b) a marriage by a person having four wives with
a fifth wife (s. 198);
(c) a marriage with a woman who is the wife of
another, (s. 198A);
(d) a marriage with a woman undergoing iddat
(s.199);
(e) a marriage prohibited by reason of
difference of religion (s. 200);
(f) a marriage with a woman so related to the wife
that if one of them had been a male, they could
not have lawfully intermarried (s. 204)…”
(emphasis supplied)
The reason why the aforesaid marriages are invalid and not
void has also been provided later in the same paragraph. With
respect to marriages prohibited by reason of difference of religion,
it is stated thus:
“…in cl. (e) the objection may be removed by the
wife becoming a convert to the Mussulman,
Christian or Jewish religion, or the husband
adopting the Moslem faith…”
In the 10th edition, a change has been made to the meaning
of fasid marriage. In § 196A, valid, irregular and void marriages
are dealt with. It reads:
“A marriage may be valid (sahih) or irregular
(fasid), or void from the beginning (batil).”
(emphasis supplied)
10
From the 10th edition onwards, fasid marriage has been
described as an irregular marriage, instead of invalid, but there
has been no change with regard to the effect of a fasid marriage
from the 6th edition onwards. The effects of an invalid (fasid)
marriage have been dealt with in the 6th edition of Mulla at § 206
at page 166, clauses (1) and (2) of which read:
“(1) An invalid marriage has no legal effect before
consummation.
(2) If consummation has taken place, the wife is
entitled to dower [“proper” (s. 220) or specified (s.
218), whichever is less], and children conceived
and born during the subsistence of the marriage
are legitimate as in the case of a valid marriage.
But an invalid marriage does not, even after
consummation, create mutual rights of
inheritance between the parties.”
In the 8th edition of Mulla, the effects of a fasid marriage
have been dealt with in § 206 at page 173. As in the 6th edition, it
is stated that children conceived and born during the subsistence
of a fasid marriage are legitimate, as in the case of a valid
marriage. As noted supra, the same position has been followed in
the subsequent editions also, except that fasid has been
described as “irregular” from the 10th edition onwards rather than
as “invalid”.
11
Irrespective of the word used, the legal effect of a fasid
marriage is that in case of consummation, though the wife is
entitled to get dower, she is not entitled to inherit the properties
of the husband. But the child born in that marriage is legitimate
just like in the case of a valid marriage, and is entitled to inherit
the property of the father.
9. Evidently, Muslim law clearly distinguishes between a valid
marriage (sahih), void marriage (batil), and invalid/irregular
marriage (fasid). Thus, it cannot be stated that a batil (void)
marriage and a fasid (invalid/irregular) marriage are one and the
same. The effect of a batil (void) marriage is that it is void ab
initio and does not create any civil right or obligations between
the parties. So also, the offspring of a void marriage are
illegitimate (§ 205A of the 6th and 8th editions and §§ 205A of the
10th edition, and 266 of the 18th edition of Mulla). Therefore, the
High Court correctly concluded that the marriage of Defendant
No. 9 with Mohammed Ilias cannot be held to be a batil marriage
but only a fasid marriage.
12
10. We find that the same position has been reiterated in the 21st
edition of Mulla as follows. The distinction between void and
irregular marriages has been dealt with in § 264 at page 349:
“(1) A marriage which is not valid may be either
void or irregular.
(2) A void marriage is one which is unlawful in
itself, the prohibition against the marriage being
perpetual and absolute. Thus, a marriage with a
woman prohibited by reason of consanguinity
(§260), affinity (§261), or fosterage (§262), is void,
the prohibition against marriage with such a
woman being perpetual and absolute.
(3) An irregular marriage is one which is not
unlawful in itself, but unlawful ‘for something else,’
as where the prohibition is temporary or relative, or
when the irregularity arises from an accidental
circumstance, such as the absence of witnesses.
Thus the following marriages are irregular, namely
—
(a) a marriage contracted without witnesses (§
254);
(b) a marriage with a fifth wife by a person having
four wives (§ 255);
(c) a marriage with a woman undergoing iddat (§
257);
(d) a marriage prohibited by reason of
difference of religion (§ 259);
(e) a marriage with a woman so related to the
wife that if one of them had been a male, they could
not have lawfully intermarried (§ 263).
13
The reason why the aforesaid marriages are
irregular, and not void, is that in Clause (a) the
irregularity arises from an accidental circumstance;
in Clause (b) the objection may be removed by the
man divorcing one of his four wives; in Clause (c)
the impediment ceases on the expiration of the
period of iddat; in Clause (d) the objection may be
removed by the wife becoming a convert to the
Mussalman, Christian or Jewish religion, or the
husband adopting the Moslem faith; and in
Clause (e) the objection may be removed by the man
divorcing the wife who constitutes the obstacle;
thus if a man who has already married one sister
marries another, he may divorce the first, and make
the second lawful to himself.”
(emphasis supplied)
The effect of an irregular (fasid) marriage has been dealt
with in § 267 at pages 350351
of the 21st edition of Mulla as
follows:
“267. Effect of an irregular (fasid) marriage.—(1)
An irregular marriage may be terminated by either
party, either before or after consummation, by
words showing an intention to separate, as where
either party says to the other “I have relinquished
you”. An irregular marriage has no legal effect
before consummation.
(2) If consummation has taken place—
(i) the wife is entitled to dower, proper or
specified, whichever is less (§ 286, 289);
14
(ii) she is bound to observe the iddat, but the
duration of the iddat both on divorce and death is
three course (see § 257(2));
(iii) the issue of the marriage is legitimate.
But an irregular marriage, though consummated,
does not create mutual rights of inheritance
between husband and wife...”
(emphasis supplied)
The Supreme Court, in Chand Patel v. Bismillah Begum,
(2008) 4 SCC 774, while considering the question of the validity
of a marriage of a Muslim man with the sister of his existing wife,
referred to the above passages from Mulla (from an earlier edition,
as reproduced in the 21st edition) while discussing the difference
between void and irregular marriages and the effects of an
irregular marriage.
11. In Syed Ameer Ali’s Mohamedan Law also, the same
principle has been enunciated. The learned author, while dealing
with the issue of the legitimacy of the children, observed at page
203 of Vol. II, 5th edition:
“The subject of invalid marriages, unions that are
merely invalid (fasid) but not void (batil) ab initio
under the Sunni Law, will be dealt with later in
detail, but it may be stated here that the issue of
invalid marriage are without question legitimate
according to all the sects.
For example, if a man were to marry a nonscriptural
woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate.”
Tahrir Mahmood in his book Muslim Law in India and
Abroad, (2nd edition) at page 151 also affirms that the child of a
couple whose marriage is fasid, i.e., unlawful but not void, under
Muslim law will be legitimate. Only a child born outside of
wedlock or born of a batil marriage is not legitimate.
A.A.A. Fyzee, at page 76 of his book Outlines of
Muhammadan Law (5th edition) reiterates by citing Mulla that the
nikah of a Muslim man with an idolater or fireworshipper
is only
irregular and not void. He also refers to Ameer Ali’s proposition
that such a marriage would not affect the legitimacy of the
offspring, as the polytheistic woman may at any time adopt
Islam, which would at once remove the bar and validate the
marriage.
12. The position that a marriage between a Hindu woman and
Muslim man is merely irregular and the issue from such wedlock
is legitimate has also been affirmed by various High Courts. (See
Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad),
Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19).
13. Thus, based on the above consistent view, we conclude that
the marriage of a Muslim man with an idolater or fireworshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s
property. It would not be out of place to emphasise at this
juncture that since Hindus are idol worshippers, which includes
worship of physical images/statues through offering of flowers,
adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but
merely an irregular (fasid) marriage.
14. In this view of the matter, the trial Court and the High
Court were justified in concluding that the plaintiff is the
legitimate son of Mohammed Ilias and Valliamma, and is entitled
to his share in the property as per law. The High Court was also
justified in modifying the decree passed by the trial Court and
awarding the appropriate share in favour of the plaintiff. No
issue has been raised before us relating to the quantum of share.
Accordingly, the appeal fails and stands dismissed.
………………………………..J.
[ N.V. Ramana]
………………………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
January 22, 2019.
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